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Opinions of Saturday, 20 July 2013

Columnist: Asare, Kwaku S.

What Should Happen When the Court Speaks?

S. Kwaku Asare

In a matter of weeks, if not days, the Supreme Court will opine on the validity of the election of John Mahama as the President of Ghana, as it is empowered to do under the Constitution. The Court’s opinion will be the last word on the outcome of the December 2012 elections; is binding on all parties to the election dispute and must be accepted by everyone in the country. What can the Court say and how should the parties react?

To appreciate what the Court can say, one must revisit the reliefs sought by the petitioners and the issues inherent in addressing those reliefs. The petitioner sought two specific declaratory reliefs: (i) that John Mahama was not validly elected President of the Republic of Ghana; (ii) that Nana Akufo Addo rather was validly elected President of the Republic of Ghana. In addition, the petitioner prayed for any consequential orders as the Court may deem fit.

To address these reliefs, the Court must address three issues sequentially. First, the Court must decide whether there were irregularities, malpractices, omissions and statutory violations (IMOV) in the conduct of the elections as well as the counting and collation of the ballots. Second, if the Court finds IMOV, it must next determine whether they were of such magnitude as to invalidate the declaration of John Mahama as the President of the country. Third, if the Court finds that John Mahama was not validly elected, it must determine whether Nana Addo was validly elected.

Based on how the Court answers these three questions, it will then grant the necessary reliefs and issue consequential orders, which may take the form of:

a. John Mahama was validly elected; either because there were no IMOV or any IMOV were not outcome-altering. b. John Mahama was not validly elected. Rather, Nana Akufo-Addo was validly elected. This outcome will suggest that the Court found evidence of IMOV and after eliminating those IMOV, Nana Addo emerges as President because he obtains the necessary 50%+1 votes. The consequential orders will include a direction to the President and Vice President to immediately vacate their offices and for the Chief Justice to swear in Nana Addo and Mahamadu Bawumia as President and Vice-President respectively. Alternatively, the Court could simply direct the Electoral Commission to declare these results, to the same effect. c. John Mahama was not validly elected. However, no candidate procured the necessary 50%+1. The consequential orders will include a direction to the Electoral Commission to put an election-runoff machinery in place within a specified reasonable time. Further, the Court will order the President and Vice President to immediately vacate their offices and direct the Speaker of Parliament to act as President until such time that a new President has been elected.

If the Court hands down outcome (a), Nana Addo should immediately call President Mahama to concede and to congratulate him for his victory. He must also pledge his support for the President and ask his supporters to do the same. President Mahama should probably invite Nana Addo to the Flagstaff house the next day. If the Court hands down outcome (b), the role should be reversed. In that case, John Mahama should immediately call President Nana Addo to concede, to congratulate him for his victory and to pledge his support. President Akufo Addo should probably invite John Mahama to his residence the next day.

As I have discussed elsewhere, the concession is an important democratic ritual and it is the singular action that signifies the successful resolution of an election (see http://www.modernghana.com/news/444635/1/the-absence-of-a-concession-and-the-powers-of-the-.html). Given the controversy surrounding this election, supplementing the concession with a meeting of the main actors will fast-track the healing process and catalyze the return to political normalcy.

If outcome (c) is announced, no concessions are necessary but perhaps both men should appear at a neutral scene, and pledge to run a peaceful runoff campaign. In that case, the electoral commission should do an urgent internal audit to understand what went wrong and emplace corrective mechanisms for the runoff.

Undoubtedly, the Supreme Court Justices will work tirelessly to reach a fair verdict. Over the past few months, the Justices have shown total commitment to determining this case fairly. However, because an election case is necessarily at the intersection of politics and adjudication, it is reasonable to expect that about half of the people will be disappointed by the verdict. This is normal and such disappointment is just what happens after every close election. There is a winner and there is a loser. But we, as a people, have demonstrated that we accept close elections outcome, manage our disappointments and move on!

Unlike others, I have ample faith in the goodness of my fellow citizens and I expect everyone to remain calm, peaceful and law-abiding as we sail the constitutional waters. Thus, I expect everyone to accept the Court’s verdict, even if they vehemently disagree with it. That, after all, is the essence of democracy and constitutionalism.